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Divorce or “Voidance”?

Although one Texas judge found that she had jurisdiction over the divorce proceedings involving a gay couple (by reading the state’s constitutional ban on same-sex marriages as trumped by¬† the U.S. Constitution’s guarantee of equality), that isn’t the result you’re going to get in most courts.

In this latest case from Texas, a same-sex couple legally married in Massachusetts wanted to dissolve their relationship after moving to Austin, TX. But only one party — it seems like the one with fewer assets — wants to divorce. The other resists, and is apparently seeking to void the marriage. As the Attorney General has opined (correctly), Texas law plainly makes that the right course of action.

The difference could be huge, and provides yet another reason for legal recognition of same-sex unions. In a divorce, courts equitably divide all marital property (to simplify, property acquired during marriage by either spouse). Since Texas is a community property state, the ideal would be equal distribution unless there were some compelling reason to do otherwise.

In a “void” relationship, several Texas decisions strongly suggest that the less-well-off party might get…nothing. In one case, a surviving partner wasn’t able to convince the court to favor him over the deceased’s stepson under the “marriage-like relationship” doctrine. because of Texas’s strongly expressed position against same-sex marriages. While the court didn’t expressly rule out the possibility that other equitable doctrines might be invoked, the party petitioning for division of assets has an uphill, perhaps impossible, climb.

Things would be have slightly better, perhaps, if the couple had executed a pre-nup; Texas law will recognize these agreements even as to “void” marriages if doing so is needed to prevent injustice.

I suppose injustice is no problem absent such an agreement. But the pre-nup typically protects the party with greater assets anyway, so the combination of laws in Texas seems crafted to ensure that the non-wage earning spouse in a same-sex couple will be left out of a property division that she might reasonably have relied on. This, of course, is a disincentive for same-sex couples to become as fully invested in each other’s lives as a legally married couple. But isn’t that the idea?

And, once again, I can’t help criticizing the woman seeking to void the marriage. Or to be more precise (since I don’t know anything about the particulars of the relationship here): When will same-sex couples who split up learn to stop using the law to undermine the struggle for equality?

  1. TF
    December 25th, 2009 at 09:15 | #1

    Re: your last sentence – Hear! Hear! I’ve sometimes wondered how they look at themselves in the mirror and sleep at night. Then in my weaker moments I have meaner thoughts. Sometimes I can barely read my NCLR newsletter because of all the cases like this one.

  1. April 29th, 2010 at 07:01 | #1